WASHINGTON (CN) – Swinging a U-turn in a case about federal railway law, the justices of the Supreme Court took a brief detour at oral argument Tuesday to debate which cross-country highway cuts through Montana.
“Counsel, I must apologize,” said Justice Neil Gorsuch, having consulting a blue-backed atlas to resolve their squabble.
The lone westerner on the court, Gorsuch had jumped in to correct Chief Justice John Roberts for suggesting that the highway in question is Interstate 90.
Though Roberts tried to continue his point when Gorsuch said he was thinking of I-80, a microphone on Gorsuch’s robes picked up the sound as Gorsuch questioned himself under his breath.
Justices Stephen Breyer and Clarence Thomas soon joined in the debate, which ended with vindication for Roberts’ initial guess.
“It’s 90 across Montana, 80 across Wyoming,” Gorsuch apologized. “I’m very sorry, Mr. Chief Justice.”
The distraction was fitting in a case where all three of the attorneys arguing before the court chose to give up the podium before exhausting their allotted time, and where few questions from the justices punctuated the lawyers’ lengthy arguments.
Highways notwithstanding, the justices had assembled Tuesday to hear a dispute between BNSF Railway and two of its employees, one a North Dakota man who injured his knee on the job in Washington state and the other the estate of a worker whose death it attribute to on-the-job chemical exposure.
Neither man suffered their claimed injuries in Montana, but each brought a suit against BNSF in the state, claiming the Federal Employers’ Liability Act gave them personal jurisdiction in whatever state in which a railroad company does business. a Though BNSF operates lines in 28 states, 6 percent of its railroad mileage is in Montana and 5 percent of its payroll lives in the state.
Appearing to favor the railroad, the justices were critical of sending employers to courts that have no tangible connection to the case beyond the company’s operations in the state.
“I could understand why Congress … might have wanted to allow the injured worker to sue where the injury occurred or where the worker resides or where the company is headquartered, but why they would want to allow a suit in a state that satisfies none of those, really is hard to understand,” Justice Samuel Alito said.
Arguing on behalf of BNSF, Gibson Dunn attorney Andrew Tulumello warned the justices that allowing injured workers to sue in any state court where a rail company has business would set up a situation where an unusually high number of suits are filed in a handful of courts.
Congress could not have meant to set up that type of arrangement when it added two sentences detailing jurisdiction in cases against railroad companies to the FELA in 1910, Tulumello argued.
“Adopting our rule would bring some predictability and some order to the industry,” Tulumello said. “Right now it is a true wild west of FELA claims being filed in forums like Montana and like these cases where the plaintiffs are not from Montana, none of the alleged injury occurred in Montana and yet we’re still subject to suit there.”
But Julie Murray, an attorney for Public Citizen Litigation Group who argued for the estate of former BNSF worker Brent Tyrrell, said a reversal would upend a century of standard practice. FELA is an “unusual statute that was called for by unusual circumstances,” Murray said, because rail workers often get injured very far from where they live, making it difficult to clearly show where their lawsuits belong.
Roberts chastised the attorney for her circular logic when she touted the experience Montana judges have in FELA cases.